Madhya Pradesh High Court
Amrat Singh Dhakad vs The State Of Madhya Pradesh on 27 April, 2017
HIGH COURT OF JUDICATURE MADHYA PRADESH,
JABALPUR
WRIT PETITION NO.11676 OF 2012
Amrat Singh Dhakad
Vs.
State of Madhya Pradesh & Others.
----------------------------------------------------------------------------------
Shri Atul Choudhary, Advocate for the petitioner.
Shri Anubhav Jain, Panel Lawyer for the respondent
No.1/State.
Shri Deepak Raghuwanshi, Advocate for the respondents
No.2 & 3.
----------------------------------------------------------------------------------
ORDER
(Passed on this the 27th day of April, 2017) The petitioner before this Court was posted as Secretary in the office of respondent No.2/M.P. Rajya Beej Evam Farm Vikas Nigam. The petitioner is aggrieved by the issuance of Charge sheet dated 05.10.2011 (Annexure-P/1) as also the order dated 18.7.2012 (Annexure P/8) which is a notice under Rule 14 of the M.P. Civil Services (Classification, Control & Appeal) Rules, 1966 (hereinafter referred to as âthe Rules of 1966â) whereby a reply is sought from the petitioner regarding the order of reversion to be passed in a departmental enquiry under rule 14 and rule 10(6) of the Rules of 1966.
2. In brief the facts of the case are that on 5.10.2011 a charge sheet (Annexur P-1) was issued to the petitioner wherein as many as 7 charges were framed against the petitioner regarding dereliction of duties.
3. The contention raised by the learned counsel for the petitioner is that all the charges relate to his conduct of the year 1990 except the charge No.4 which is in respect of his conduct of the year 1998. Further contention of learned counsel for the petitioner is that the aforesaid charge-sheet has been issued after a lapse of considerable period of time i.e. around 21 to 13 yearsâ time frame and hence the same is liable to be quashed. It is further submitted that after the charge sheet was issued to the petitioner on 5.10.2011, Shri S.D. Sharma, Secretary, Beej Nigam was appointed as new Enquiry Officer on 31.10.2011, as many as four Enquiry/presenting Officers have been changed for one reason or other. As when the petitioner objected to the appointment of Shri S.D. Sharma as the Enquiry Officer, he was replaced by Shri Rajan Sharma, account officer as Enquiry Officer and similarly in case of presenting officer, on account of retirement of Shri M.L.Jain, he was also replaced by Shri Ravishankar Malviya. Thus, it is submitted by the counsel for the petitioner, even the respondent department had not proceeded with the enquiry expeditiously and without conducting proper enquiry at all, without affording an opportunity of hearing and without furnishing requisite documents as claimed by the petitioner vide Annexure P/7, the enquiry has been completed and subsequently on 18.7.2012 the impugned show cause notice has been issued to the petitioner. Reliance has been placed by the learned counsel for the petitioner upon the judgment of the Apex Court in the case of P.V.Mahadevan Vs. Managing Director, Tamil Nadu Housing Board (2005) 6 SCC 636 (para 11, 12) and also the decision of this Court in the case of Lavkush Prasad Gautam vs. Food Corporation of India and others, 2001 (2) MPLJ 54 wherein this Court has held that a delay of 17 years for initiating the departmental enquiry against the employee could be a ground for quashing the memorandum of charge sheet.
4. In return, the contention of the respondents is that the petitioner is an influential person and his conduct throughout the service has been subject matter of dereliction of duties and the petitioner is in the habit of withholding the Government records and that is why the charge sheet has been issued to him. It is further submitted that the delay in filing the charge sheet has been properly explained in a subsequent document filed by the respondents along with I.A. No.1491/2013 as Annexure R-3/7 wherein the delay in respect of each and every instance as alleged in the charge sheet has been explained. The learned counsel for the respondents No.2 and 3 has further relied upon a note-sheet dated 12.5.1994, which is an order passed by the then Chief Minister directing the respondents that the present petitioner Amrat Singh Dhakad be appointed as Secretary (Administration) of M.P. Rajya Beej Evam Farm Vikas Nigam at Head Office, Bhopal and it is further submitted by the respondent that the petitioner has filed a forged document in the form of preliminary report prepared by Shri Amar Singh Chauhan, Manager (Engineering) wherein clean-chit has been given to the petitioner after a detailed examination. The aforesaid document as contended by the respondents has been wrongly obtained by the petitioner from Shri Amar Singh Chauhan, who was also asked an explanation on 15.10.2012 in this regard and the reply to this explanation is also filed alongwith I.A. No.15128/2012. In his reply it is submitted by Shri Amar Singh Chauhan that he had prepared a draft report which was obtained by the present petitioner to show the same to the Managing Director but the aforesaid report was not returned to him and it is also submitted by him that since there is no dispatch number on this report, it means that it has not been finalized and it is stated that the aforesaid report has been used with mala fide intention by the petitioner.
5. Heard the learned counsel for the parties and perused the record.
6. In the case of P.V.Mahadevan (supra), the Honâble Apex Court has not accepted explanation put forth by the respondent for filing the charge sheet after a delay of 10 years.
7. In the case of Lavkush Prasad Gautam (supra), this Court has dealt with the issue at hand in the following manner:-
â4. It is relevant here to state that charges levelled against the petitioners pertain to an incident which has taken place on 10.3.1980. Departmental enquiry against the petitioners has been initiated by issuance of memorandum of charges dated 14.7.1997. It is not the case of the respondents that they did not know about the incident, and when it came to their notice, the departmental enquiry has been initiated against the petitioners in the year 1987.
5. In support of her submission Mrs. Menon has placed reliance on the decision of the Supreme Court in the case of State of M.P. vs. Bani Singh and another, AIR 1990 SC 1308; in which it as been held as follows:
"If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with the Tribunal's orders and accordingly we dismiss this appeal."
Another decision on which Mrs. Menon has placed reliance is the judgment of the Supreme Court in the case of State of Punjab and others vs. Chamanlal Goyal, (1995) 2 SCC 570 and my attention has been drawn to the following passage:-
"Now remains the question of delay. There is undoubtedly a delay of five and a half years in serving the charges. The question is whether the said delay warranted the quashing of charge in this case. It is trite to say that such disciplinary proceeding must be conducted soon after the irregularities are committed or soon after discovering the irregularities. They cannot be initiated after lapse of considerable time. It would not be fair to delinquent officer. Such delay also makes the task of proving the charges difficult and is thus not also in the interest of administration. Delayed initiation of proceedings is bound to give room for allegations of bias, mala fides and misuse of power. If the delay is too long and is unexplained the Court may well interfere and quash the charges. But how long a delay is too long always depends upon the facts of the given case. Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted. Wherever such a plea is raised, the Court has to weigh the facts appearing for and against the said plea and take a decision on the totality of circumstances. In other words, the Court has to indulge in a process of balancing."
(Emphasis supplied) Yet another decision on which she has placed reliance is the judgment of the Supreme Court in the case of State of Andhra Pradesh vs. Radhakishan, AIR 1998 SC 1833; wherein it has been held as follows:-
"It is not possible to lay down anyone determined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the Court has to take into consideration all relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay the delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much disciplinary authority is serious in pursuing the charges against the employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from the path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately the Court is to balance these two diverse considerations." (Emphasis supplied) She has also referred to the decision of this Court in the case of N.K Soloman vs. Food Corporation of India and another, 1997(2) MPLJ
94. This Court on consideration of the various authorities held as follows:-
"I have considered the submission made by the learned counsel for the parties in the light of the decision of the Supreme Court cited by them. In the opinion of this Court the departmental enquiry commenced after 13 years of the commission of the alleged misconduct deserves to be quashed on the ground of unreasonable delay and laches on the part of the employer. It need not be emphasized that unduly delayed disciplinary action is bound to cause prejudice to the employee in defending himself. The decision of the Supreme Court in the case of Bani Singh (supra) supports that view".
6. Shri Jha, however, appearing on behalf of the respondents submits that delay cannot itself be a ground to quash the charges. In support of his submission he has placed reliance on a judgment of the Supreme Court in the case of Union of India and others vs. Raj Kishore Parija, 1995 Supp. (4) SCC 235. It is apt to reproduce the entire judgment:
"1. Leave granted.
2. Heard parties. There is no doubt that the employee was suspended from the year 1984 and the charge sheet was served on him in the year 1988. The enquiry is not yet complete. The Tribunal was, therefore, right in ordering reinstatement of the employee. However, the Tribunal travelled beyond its jurisdiction in quashing the charges and the disciplinary proceedings themselves. We are informed that in pursuance of the order of the Tribunal the respondent-employee has been reinstated in service.
2. We therefore, quash that part of the order of the Tribunal by which the Tribunal had quashed the charges and the disciplinary proceedings, and permit the appellant-Union of India, if it so intends, to proceed with the enquiry. However, the appellant is directed to complete the enquiry within 6 months from today. The appeal is allowed accordingly with no order as to costs."
In this case, the Supreme Court has not gone into the question of delay per-se and on the facts of the said case interfered with the order of the Tribunal and held that charges ought not to have been quashed.
7. From the judgments of the Supreme Court in the cases of Bani Singh (supra), Chamanlal Goyal (supra), Radhakishan (supra) and of this Court in N.K Soloman (supra) there is no manner of doubt that delay and laches in initiating the departmental enquiry can be a ground for quashing the departmental enquiry itself. Further no hard and fast rule can be laid as to the extent of delay which shall result into quashing of the charge sheet. Further when the delay is explained satisfactorily, charge sheet cannot be quashed. Here in the present case, I find that the petitioners are being proceeded against for an act which is alleged to have been committed on 10.3.1980 and for which charge sheet was filed on 14.7.1997.â (emphasis supplied)
8. In the backdrop of the aforesaid decisions, when the facts of the present case are considered, they reveal that in the Charge Sheet dated 05.10.2011, it is apparent that the charges leveled against the petitioner are in respect of his alleged misconducts in the year 1990 i.e. around 21 years ago and the other is in respect of his misconduct in the year 1998. So far as the document (Annexure R3/7) submitted by the respondents along with their additional affidavit dated 06.02.2013, which according to the respondents, explains the delay caused in filing of the charge sheet against the petitioner is concerned, having gone through the said document (Annexure R3/7), this Court finds that not only that this document nowhere refers to the word âdelayâ but is in fact a snapshot of the allegations made against the petitioner. Thus, the explanation, if any provided for inordinate delay caused in issuing the charge sheet is totally insufficient and vague. Therefore, the delay caused in filing the charge sheet cannot be said to be properly explained by the respondents.
9. So far as the document (Annexure P-10) filed along with IA No.13539/2012 is concerned, which is a note sheet prepared by Shri Amar Singh Chauhan, which according to the petitioner is prepared by Chauhan, the then Managing Director in respect of the charge sheet issued to the petitioner wherein Shri Amar Singh Chauhan has given the clean-chit to the petitioner. But in the return the respondents' contention is that the said document is a forged document for the reason that it has not been certified by Shri Amar Singh Chauhan and in fact the petitioner has obtained the aforesaid document under a false pretext, and the same is being purpose. The respondents have also filed an affidavit submitted by Shri Amar Singh Chauhan dated 15.12.2012 wherein it is mentioned by Shri Amar Singh Chauhan that he had received oral instructions to prepare preliminary report, which was obtained by the petitioner from Amrat Singh Dhakad under the pretext showing the same to the Managing Director and when Shri Amar Singh Chauhan demanded the said report from the petitioner, the petitioner did not give it to him for one reason or other, but as per Shri Amar Singh Chauhan, this report was not final report as it does not bear the despatch number and the aforesaid report has been fraudulently misused by the petitioner to his own purposes. Shri Amar Singh Chauhan has further submitted in his explanation that the same may not be accepted. Thus, it is not denied by Chauhan that the said report was not prepared by him. So far as its preparation is concerned, from the preliminary enquiry report submitted by Shri Amar Singh Chauhan, it is also apparent that the aforesaid report been prepared after taking into account the various documents hence it cannot be said that the same has been prepared without any basis, and hence of no value at all. Taking into account the overall facts and circumstances of the case, the delay occasioned at the instance of the respondents this Court is of the considered opinion that there is no point for the respondents in continuing with the charge sheet.
10. Resultantly, the present petition filed by the petitioner deserves to be and is hereby allowed and the Charge sheet dated 05.10.2011 (Annexure-P/1) as also the show cause notice dated 18.7.2012 (Annexure P-8) are hereby quashed. No order as to cost.
(Subodh Abhyankar) Judge 27/04/2017 ansari